Patna High Court – Orders
Raja Kumar vs The State Of Bihar on 12 August, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 56218 of 2025
Arising Out of PS. Case No.-1030 Year-2025 Thana- PHULWARISHARIF District- Patna
======================================================
Raja Kumar, S/O Moti Mahto, R/O- Kumhar Toli Sangatpar, Ward No.-06,
P.S.- Phulwarisharif, Distt.- Patna
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ram Jiban Pd. Singh, Adv.
For the Opposite Party/s : Mr. Pranav Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
2 12-08-2025
Heard Mr. Ram Jiban Pd. Singh, learned counsel for
the petitioner and Mr. Pranav Kumar, learned APP for the State.
2. Petitioner seeks regular bail in connection with
Phulwarisharif P.S. Case No. 1030 of 2025 dated 25.06.2025
registered for the offence punishable under sections 8(c)/21(a)
of the Narcotic Drugs and Psychotropic Substances, Act, (in
short ‘NDPS Act‘).
3. The main submissions advanced by petitioner’s
counsel are that the instant matter relates to the recovery of
eight sachets allegedly containing smack-like material, which
collectively weighed 1.76 grams, including the weight of the
sachets, on an electronic weighing machine, however, without
the sachets, the weight of the contained material was only 0.32
grams, which is a very small quantity but despite this, the trial
court rejected the petitioner’s prayer for regular bail in a
Patna High Court CR. MISC. No.56218 of 2025(2) dt.12-08-2025
2/6
mechanical manner without considering the prescribed
punishment for the alleged offence. It is further submitted that
the petitioner has been languishing in jail since 26.06.2025,
though against him there is criminal antecedent of one case but
he is on bail in the said case.
4. Learned APP for the State has opposed the prayer
of the petitioner.
5. Heard both the sides, perused the FIR and the trial
court’s order rejecting the bail prayer of the petitioner. Section
37(1) of the NDPS Act says that every offence punishable under
NDPS Act shall be cognizable, though upon first reading of the
heading of the said section, one may get an impression that all
the offences under the NDPS Act are non-bailable, however, on
reading the language of section 37 of NDPS Act, it becomes
clear that in clause (a) to subsection (1), the legislature has
unequivocally declared that notwithstanding anything contained
in the code of criminal procedure, every offence punishable
under this act shall be cognizable. If this provision would not
have been there, certain offences under the NDPS Act
punishable with imprisonment for less than three years or with
fine, would be non-cognizable in view of Part II of the First
Schedule of the BNSS but they are made cognizable because of
the specific provision in clause (a) of the section 37(1) of the
Patna High Court CR. MISC. No.56218 of 2025(2) dt.12-08-2025
3/6
NDPS Act. If the heading of section 37 is kept aside for a
moment, nowhere section 37 specifically declares that every
offence punishable under the NDPS Act shall be non-bailable.
As such, the offences which are punishable with imprisonment
for less than three years under the NDPS Act must be treated as
bailable in view of the Part II of the First Schedule of the BNSS
except the offences which have been specifically made non-
bailable irrespective of the quantum of punishment. In this
regard, I would like to refer to the observations made by the
Hon’ble Punjab and Haryana High Court in the case of Kuldeep
Singh alias Keepa vs. State of Punjab in CRM-M-60671-
2024 and the relevant paragraphs Nos. 80, 81, 82 and 83 of the
said judgment are reproduced as under : –
“80. In the absence of explicit legislative
clarification, the only viable recourse available to
the judiciary is an interpretative reliance on
Schedule II of the BNSS 2023, which delineates the
classification of offences based on the prescribed
sentence. As per the final column of this Schedule,
offences carrying a sentence of less than three years
are categorically designated as non-cognizable and
bailable. However, within the framework of the
NDPS Act, offences are explicitly classified as
cognizable in the corresponding column of the
Second Schedule. Consequently, the designation of
‘non-cognizable’ cannot be extrapolated to NDPS
offences, given that the Act operates as a Special
Legislation with an overriding effect.
81. Nevertheless, while the NDPS Act
Patna High Court CR. MISC. No.56218 of 2025(2) dt.12-08-2025
4/6unequivocally declares such offences as cognizable,
it remains silent on their bailability. In light of this
legislative omission, the intent of the legislature
must be discerned through Schedule II of the BNSS
2023, which unambiguously stipulates that all
offenses carrying a sentence of less than three years
shall be treated as bailable. Since the maximum
sentence that may be imposed for an offense
involving a small quantity under the NDPS Act is
one year, it logically follows that such an offense
must be construed as bailable under the prevailing
legal framework.
82. Thus, in light of the judicial
precedents cited above and the foregoing analysis.
the general rule of incarceration should be viewed
as an exception in the context of offences involving
small quantities under the NDPS Act. Where the
statutory framework does not expressly mandate
stringent bail restrictions, judicial interpretation
must align with the principles of proportionality and
legislative intent, ensuring that minor infractions
are not met with unduly harsh consequences.
83. Consequently, when the
contravention under the NDPS Act involves ‘Small
Quantity’, the offences are Bailable’. When the drug
quantity falls in small category, the offence is
bailable by operation of BNSS, 2023. Thus, any
person accused of such an offence is entitled to bail
without filing any bail application, subject to
furnishing the requisite bail bonds.”
I would also like to refer to the observation made by
Hon’ble Division Bench of the Delhi High Court in the case of
Minnie Khadim Ali Kuhn vs. State NCT of Delhi & Ors.
Patna High Court CR. MISC. No.56218 of 2025(2) dt.12-08-2025
5/6
reported in 2012 SCC OnLine Del 2657 and the relevant
paragraph No. 19 of this judgment is being reproduced as
under :-
“19. This court, in view of the above analysis, is
therefore, of the opinion that except in respect of
offences specifically enumerated under Section 37,
i.e. offences punishable under Sections 19, 24 and
27, and those cases involving commercial quantities,
the normal law, i.e. the Criminal Procedure Code is
applicable whenever the question of bail arises.
Thus, if the offences are punishable like in the case
of possession of small quantities of the concerned
substance or drug, under Section 21 and 22- the
suspect or accused is entitled to bail, and if she or
he is prepared to give, has to be granted bail, in
terms of Section 436 of the Criminal Procedure
Code, without the necessity of his (or her) seeking it
in the Court. This Court hereby directs the Police
Commissioner to issue necessary guidelines and
instructions to all police officials bringing to their
notice the effect of this judgment, so that they are
suitably instructed in future cases, wherever
offences are bailable, to release the suspects
wherever bail is offered in terms of Section 436, Cr.
PC, read with Item 3 of Part II to the First Schedule
of the Act, and any other class of offences deemed
bailable by the Code.
The instant matter relates to the recovery of 1.76 gm
smack like material, including the weight of seized sachets,
from the possession of the petitioner and the same comes in the
purview of small quantity for which the maximum punishment
Patna High Court CR. MISC. No.56218 of 2025(2) dt.12-08-2025
6/6is rigorous imprisonment for a term which may extend to one
year or with fine which may extend to Rs. 10,000/- or both. So,
in such a situation, the alleged wrong of the petitioner
punishable under section 21(a) of the NDPS Act comes in the
purview of bailable offence and the petitioner ought to have
been released on bail in view of the provisions of section 478 of
BNSS, even then, the trial court without considering this aspect,
rejected the petitioner’s bail prayer in mechanical manner,
which frustrates the spirit of the NDPS and BNSS law.
Accordingly, the prayer of the petitioner is allowed. Let the
petitioner named-above be released on bail on furnishing bail
bond of Rs.20,000/-(Rupees Twenty Thousand) with two
sureties of the like amount each to the satisfaction of the court
concerned in connection with Phulwarisharif P.S. Case No. 1030
of 2025.
6. Let this order’s copy be sent to the Director
General of Police, Bihar for making the police officials aware of
the bailability and non-bailability of the offences punishable
under NDPS Act.
(Shailendra Singh, J)
annu/-
U T AFR